IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140826

Docket: M120744

Registry:
Vancouver

Between:

Ateshia Walker

Plaintiff

And

Wing Kwai Leung

Defendant

Before:
The Honourable Chief Justice Hinkson

Reasons for Judgment

[1]            
This case arises as a result of a motor vehicle collision that occurred
in the intersection of West 41st Avenue and Oak Street in the City of Vancouver
on May 26, 2010.

[2]            
Liability for the collision, the nature and the extent of the injuries
suffered by the plaintiff, and the quantum of damages for those injuries are
all in issue.

Background

[3]            
The plaintiff was born in Vernon, British Columbia on December 9, 1980 and
raised on Vancouver Island until she was 8 years of age. She then moved with
her parents and four siblings to a two room log cabin in a rural area north of
Kamloops. The plaintiff and her siblings were home schooled by their mother.
Their father struggled with mental health and substance abuse issues, and did
not work outside the home. Both he and the plaintiff’s mother received social
assistance, which the family relied upon for their needs.

[4]            
The plaintiff and her siblings were required to assist with the needs of
the family, and the plaintiff had chores such as chopping wood and fetching
water. She learned to be relatively self-sufficient, and assisted with the care
of her younger siblings. When she was 15, the plaintiff began to attend Star
Lake School, which she described as an alternative school.

[5]            
The plaintiff’s father often left his family for as long as months,
leaving them without a car. The closest town was a 3 to 4 hour walk from the
cabin. Her father finally left the family for good when the plaintiff was
approximately 16 years of age. Her mother then moved with the plaintiff’s three
youngest siblings into Clearwater, and the plaintiff and her older sister were
left to largely fend for themselves.

[6]            
After her mother moved to Clearwater, the plaintiff found a family there
who were prepared to provide food and housing for her in exchange for her nanny
services to the family. Once in Clearwater, the plaintiff began attending
public school. She gave evidence that she was excited to attend school, and
applied herself to her studies, taking extra course work.

[7]            
In addition to providing nanny services for her room and board, the
plaintiff worked as a trail maintenance worker in nearby Wells Gray Provincial
Park, and as a lumber stacker at a local sawmill.

[8]            
The plaintiff travelled to Vancouver to celebrate New Year’s Eve in 1999
or 2000. Although she had not planned to do so, the plaintiff stayed with a
friend for some 3 months thereafter, until she secured employment doing what
she described as “investor relations”, followed by employment performing what
she termed as “background and extra” work on movie sets. Her evidence was that
while the work did not pay particularly well, she enjoyed it. Further, it
provided her with enough money to rent a two bedroom apartment that allowed her
younger sister to stay with her so that the plaintiff could assist her sister
with some of the challenges that she was then facing. Unfortunately, her efforts
to assist her younger sister were unsuccessful, and the plaintiff ultimately gave
up her apartment to live with a friend.

[9]            
In 2001, the plaintiff was hired as a production assistant for a
prominent band and spent a number of months touring through North America with it.
When she returned to the Lower Mainland, she resumed her former employment, and
at the same time began working at a bar. It was there that she became reacquainted
with Collin York, who is now her partner; they worked together for about one
year, and began dating around the end of 2002.

[10]        
In January 2003, the plaintiff travelled to Thailand and backpacked
there with Mr. York for a month. On her return, she and Mr. York
lived with friends, and she worked at a series of bars and night clubs,
including a night club where Mr. York, with the financial assistance of
his step father, had acquired a half interest. At that time the plaintiff
decided to pursue a career in massage therapy. In September of 2004 she
enrolled at the West Coast College of Massage Therapy. She continued to work evenings
at the night club that was part owned by Mr. York, and attended classes
during the day. She graduated in December 2006, after the completion of seven
semesters of study and training.

[11]        
The plaintiff said that she was careful to confirm that any credits that
she acquired through her massage therapy training could be used towards a
university degree that would enable her to apply for admission to a medical
school.

[12]        
After her graduation from massage therapy training, the plaintiff and Mr. York
moved into an apartment on West 6th Avenue in Vancouver, which they purchased
from Mr. York’s aunt with the financial assistance of Mr. York’s
mother. The couple performed extensive renovations, with the assistance of professionals
in the plumbing and electrical trades.

[13]        
After the conclusion of her massage therapy training, the plaintiff
completed the required exams in February of 2007 and commenced work at a west
side massage therapy clinic in Vancouver called Soma Studios, operated by Ms. Lori
Johnson. For her first six months at the studio, when she worked, she paid 20%
of her income to Ms. Johnson, and retained the remaining 80%.

[14]        
After six months, the plaintiff began to work on specified days and paid
Ms. Johnson a flat rate for the use of the facility. The plaintiff gave
evidence that she saw 5 patients for each half day she worked, and 8 patients
for each full day worked. She gave evidence that work as a massage therapist is
physically demanding, limiting the number of days a therapist can work in a
week. It was her evidence that she quickly progressed to seeing 8 patients per
day, 2 or 3 days per week.

[15]        
In early 2008, the plaintiff travelled to Africa for two months. On her
return, she enrolled in an undergraduate program in Applied Sciences at
Thompson Rivers University, as that institution permitted her to apply the
credits she had earned during her massage therapy training towards her degree. She
also took courses through Langara College, Athabasca University, BCIT, and the University
of Toronto for which she received credits which she understood she would
require should she apply to medical school. These credits also applied towards
her Thompson Rivers University degree.

[16]        
In early 2009, the plaintiff became pregnant with her first child. She
gave evidence that she continued with her studies and her work schedule of 2 –
3 full days per week until she reduced her work to half days in September of
that year. She continued working until the thirty-third week of her pregnancy,
at which point she was placed on bed-rest due to gestational hypertension. She
gave birth to her son Walker on October 24, 2009.

[17]        
It was the plaintiff’s evidence that during this pregnancy, she sought
treatment from a chiropractor for various aches and pains, which included
complaints of her neck feeling “stuck”, her hip rotating, sacroiliac pain and fatigue,
tightness in her mid-back, right rib discomfort, pubic symphysis pain, and
issues in her left leg. During this pregnancy the plaintiff also suffered from
migraine headaches, which she had previously experienced in her late teens.

[18]        
Prior to the motor vehicle accident, the plaintiff also complained of
upper shoulder tension, and piriformis syndrome in her right leg. As I
understood the medical evidence, piriformis syndrome is a neuromuscular
disorder that is caused when the piriformis muscle compresses the sciatic nerve,
causing pain. It was common ground amongst the medical experts that the
plaintiff has hypermobility such that her joints stretch further than the
average individual.

[19]        
Mr. York sold his night club interest in the fall of 2009, and the
couple sold their apartment as well. They moved into Mr. York’s grandmother’s
apartment, where they lived until March 2010, when they took a two and a half
month backpacking holiday to Europe with their newborn son.

[20]        
The plaintiff gave evidence that she experienced no difficulties
carrying her son and her backpack in Europe. The family returned to Vancouver
in May of 2010, mere weeks before the motor vehicle collision which is the
subject of this action. Her evidence was that she planned to take further
course work towards her undergraduate degree and to return to work in September
when her maternity benefits expired.

[21]        
The plaintiff has had two more sons since returning from Europe:
Grayson, born April 19, 2011, and Raylen, born December 22, 2013. Unfortunately
she also experienced the miscarriage of another pregnancy in February 2013.

[22]        
In November 2011, the plaintiff experienced a temporary loss of vision
for approximately 20 minutes and was investigated for a possible transient
ischemic attack. She had a diagnostic CT angiogram to investigate the symptoms associated
with this event on November 8, 2011.

The Motor Vehicle Accident

[23]        
On May 26, 2010, the plaintiff was driving a 2003 Mazda Protégé
Hatchback, with a standard transmission, eastbound on West 41st Avenue towards
Oak Street. To the west of Oak Street, 41st Avenue has a hill which crests
about one block west of Oak Street. 41st Avenue then flows downhill for
eastbound traffic until it passes a laneway to the south, before it reaches Oak
Street. There is a gas station occupying the south side of 41st Avenue between
the lane and Oak Street.

[24]        
It was the plaintiff’s evidence that as she crested the hill on 41st
Avenue, she was travelling in third gear and could see that the two eastbound
travel lanes on 41st Avenue were occupied by stopped vehicles for some
considerable distance, but that the curb lane was not occupied to the west of
Oak Street. At that time, the traffic control signal for eastbound traffic on 41st
Avenue was red.

[25]        
The plaintiff gave evidence that she slowed and shifted into first gear as
she proceeded downhill, and changed into the curb lane at a speed of
approximately 10 km/h. She conceded that she changed lanes so that she would
not have to wait to enter the intersection behind the lineup of eastbound cars.

[26]        
The defendant contends that it was her intention to overtake the two
lanes of stopped traffic by passing them in the curb lane, and to then merge
back into the middle lane after clearing the intersection, as she expected that
there would be vehicles parked in the curb lane beyond the bus stop at the
southeast corner of the intersection. As she reached the western side of the
gas station, the plaintiff’s evidence was that the traffic control signal for
eastbound traffic on 41st Avenue turned green, so she shifted into second gear
and began to accelerate.

[27]        
The plaintiff said that after the light for traffic proceeding in her
direction turned green, two westbound vehicles turned across her path to
proceed south on Oak Street. She considered that the drivers of these two
vehicles “pushed the light”, meaning the advance turn signal, and she continued
to accelerate as the lead vehicles in the two eastbound lanes to her left
started to move forward. It was her evidence in chief that the lead vehicle in
the lane immediately to her left had not travelled more than one car length as
she approached the intersection, but in cross examination she said that she
entered the intersection before the cars to her left. She conceded that due to
the two lines of vehicles to her left, she could not see the westbound left
turn lane as she entered the intersection.

[28]        
The plaintiff estimated that her speed was roughly 30 km/h when she first
saw the defendant’s 1988 Cadillac moving toward her path. She gave evidence
that the defendant’s vehicle entered the intersection before hers, and that she
slammed on her brakes; however, she was only able to slow to 10 km/h before the
two vehicles collided. It is clear from the post-collision photographs of the
vehicles that the Cadillac was a large vehicle, the front grill of which, in
its approximate centre, made contact with the left front corner of the plaintiff’s
vehicle.

[29]        
The defendant offered a rather different account of the events that
immediately preceded the collision. It was his evidence that there were two
vehicles ahead of him in the westbound left turn lane when he arrived at the
intersection where the collision occurred. He gave evidence that once he
reached the intersection, the traffic signal for left turning vehicles in the
westbound left turn lane changed to yellow, and he concluded that the two
vehicles ahead of him could not make their left hand turns, so he steered his
vehicle into the eastbound lane, close to the southern sidewalk, where he
stopped his vehicle to wait for the light to change. He gave evidence that he
was then struck by the plaintiff’s motor vehicle.

Liability for the Motor
Vehicle Accident

[30]        
The relevant portions of the Motor Vehicle Act, R.S.B.C. 1996,
c. 318, are as follows. Section 127(1)(a)(iii) states:

(1) When a green light alone is exhibited at an intersection
by a traffic control signal,

(a) the driver of a vehicle facing the green light

(iii)   must yield the right of way to vehicles lawfully in
the intersection at the time the green light became exhibited

[31]        
Section 128(1) of the Motor Vehicle Act provides that:

(1) When a yellow light alone is exhibited at an intersection
by a traffic control signal, following the exhibition of a green light,

(a) the driver of a vehicle approaching the intersection and
facing the yellow light must cause it to stop before entering the marked
crosswalk on the near side of the intersection, or if there is no marked
crosswalk, before entering the intersection, unless the stop cannot be made in
safety,

(b) a pedestrian facing the yellow light must not enter the
roadway, and

(c) a pedestrian proceeding across the roadway and facing
the yellow light exhibited after he or she entered the roadway

(i) must proceed to the sidewalk as
quickly as possible, and

(ii) has the right of way for that
purpose over all vehicles.

[32]        
Section 130 provides, in part, that:

(1) When a green arrow is exhibited at an intersection by a
traffic control signal,

(a) the driver of a vehicle facing the green arrow may
cause it to enter the intersection and to make only the movement indicated by
the green arrow, but must yield the right of way to pedestrians lawfully in the
intersection or in an adjacent crosswalk and to other vehicles lawfully in the
intersection

(2) When a yellow arrow is exhibited at an intersection by a
traffic control signal,

(a) the driver of a vehicle approaching the
intersection and facing a yellow arrow must cause the vehicle to stop

(i)   before entering the marked crosswalk on the near
side of the intersection, or

(b) the driver of a motor vehicle approaching the
intersection and facing the yellow arrow may, when a stop cannot be made in safety,
proceed with caution to make the only movement indicated by the arrow but must
yield the right of way to pedestrians lawfully in the intersection or in an
adjacent crosswalk, and to other vehicles lawfully in the intersection,

[33]        
Section 144(1) states that:

(1) A person must not drive a motor vehicle on a highway

(a) without due care and attention,

(b) without reasonable consideration for
other persons using the highway, or

(c) at a speed that is excessive relative
to the road, traffic, visibility or weather conditions.

[34]        
Section 158 of the Motor Vehicle Act provides, in part, that:

(1)            
The driver of a vehicle must not cause or permit the vehicle to overtake
and pass on the right of another vehicle, except

…

(b) when on a laned roadway there is one or more than one
unobstructed lane on the side of the roadway on which the driver is permitted
to drive, or

…

(2) Despite subsection (1), a
driver of a vehicle must not cause the vehicle to overtake and pass another
vehicle on the right

(a) when the movement cannot be made safely

[35]        
Finally, s. 174 states:

When a vehicle is in an
intersection and its driver intends to turn left, the driver must yield the
right of way to traffic approaching from the opposite direction that is in the
intersection or so close as to constitute an immediate hazard, but having
yielded and given a signal as required by sections 171 and 172, the driver may
turn the vehicle to the left, and traffic approaching the intersection from the
opposite direction must yield the right of way to the vehicle making the left
turn.

[36]        
The parties agreed on the introduction into evidence of a document
providing the timing of the lights that controlled the intersection where the
accident occurred on May 26, 2010. The evidence was that the sequence and
duration of green lights and left turn arrows are dependent on traffic volumes,
but that the minimum and maximum duration of the left turn flashing arrow for
vehicles turning from west to south, as the defendant was attempting to do, was
between 8 and 15 seconds, followed by an amber traffic light of 4 seconds
duration. These lights are then followed by a green light of 13 to 40 seconds
duration and an amber light of 3.5 seconds duration for both east and westbound
vehicles on 41st Avenue.

[37]        
I reject the defendant’s version of the events in its entirety. It
defies common sense, and is inconsistent with the vehicle damage described
above. If he had driven as he described, the defendant would have created a
situation that was not only dangerous, but also unforeseeable to any reasonable
driver.

[38]        
Despite my rejection of the defendant’s version of the events, I must
still consider the plaintiff’s conduct to assess whether she bears any
responsibility for the collision.

[39]        
The plaintiff contends that the defendant left a place of safety after
the traffic control signal for left turning traffic on 41st Avenue had turned
yellow. I find that the defendant was in the intersection of 41st Avenue and
Oak Street before the traffic control arrow for left turning traffic onto Oak
Street turned to yellow. In the result, subsection 128(1) does not apply in
this case.

[40]        
Section 174 of the Motor Vehicle Act obliged the defendant to
signal his intention to turn, and to yield the right of way to traffic in the
intersection or so close to the intersection as to constitute an immediate
hazard. The plaintiff contends that there is no evidence that the defendant
signalled his intention to turn left. In my view, whether he signalled his
intention to turn or not, he was in a dedicated left turn lane before he began
his turn.

[41]        
The defendant referred me to cases involving left turning vehicles where
liability for a collision was divided, including Lutley v. Southern,
2011 BCCA 299, 20 B.C.L.R. (5th) 323, Smeltzer v. Merrison, 2012
BCCA 13, 26 B.C.L.R. (5th) 267, Weaver v. Robinson (1992), 75 B.C.L.R.
(2d) 240, 20 B.C.A.C. 200, and Nerval v. Khehra, 2012 BCCA 436,
39 B.C.L.R. (5th) 62. Each case was dependant on the facts established at
trial, and those facts differ to a great extent from those that I have found
with respect to the conduct of the parties in this case.

[42]        
As Mr. Justice Groves commented in Aberdeen v. Township of
Langley, Zanatta, Cassels, 2007 BCSC 993 at para. 67, 35 M.P.L.R.
(4th) 233, rev’d 2008 BCCA 420:

[67]      … the key inquiry in
assessing comparative blameworthiness is the relative degree by which each of
the parties departed from the standard of care to be expected in all of the
circumstances. This inquiry is informed by numerous factors, including the
nature of the departure from that standard of care, its magnitude, and the
gravity of the risk thereby created.

[43]        
The plaintiff contends that once the traffic control signal for
eastbound traffic on 41st Avenue turned green, traffic proceeding eastbound, as
she was, had the right of way, and drivers wishing to turn left from 41st
Avenue to proceed southbound on Oak Street must wait to turn until there is an
adequate gap in the eastbound traffic on 41st Avenue to permit their turn.

[44]        
I remind myself of the statement of Lord Atkinson in Toronto Railway
v. King, [1908] A.C. 260 at 269, 7 C.R.C. 408 (P.C.), that “. . . traffic
in the streets would be impossible if the driver of each vehicle did not
proceed more or less upon the assumption that the drivers of all the other
vehicles will do what it is their duty to do, namely, observe the rules
regulating the traffic of the streets.”

[45]        
Support for the plaintiff’s position can be found in the decision of our
Court of Appeal in Pacheco (Guardian ad litem of) v. Robinson (1993), 75
B.C.L.R. (2d) 273, 22 B.C.A.C. 185. In that case, at paras. 15 and 18, Mr. Justice
Legg, writing for the Court, held:

15        In my opinion, a driver who wishes to make a left
hand turn at an intersection has an obligation not to proceed unless it can be
done safely. Where each party’s vision of the other is blocked by traffic, the
dominant driver who is proceeding through the intersection is generally
entitled to continue and the servient left-turning driver must yield the right
of way. The existence of a left-turning vehicle does not raise a presumption
that something unexpected might happen and cast a duty on the dominant driver
to take extra care. Where the defendant, as here, has totally failed to
determine whether a turn can be made safely, the defendant should be held 100
percent at fault for a collision which occurs.

. . .

18        In my opinion, when a driver in a servient position
disregards his statutory duty to yield the right of way and a collision
results, then to fix any blame on the dominant driver, the servient driver must
establish that after the dominant driver became aware, or by the exercise of
reasonable care should have become aware, of the servient driver’s own
disregard of the law, the dominant driver had a sufficient opportunity to avoid
the accident of which a reasonably careful and skilful driver would have
availed himself. In such circumstance any doubt should be resolved in favour of
the dominant driver. As stated by Cartwright, J. in Walker v. Brownlee,
[1952] 2 D.L.R. 450 (S.C.C.), at 461:

 While the decision of every motor vehicle
collision case must depend on its particular facts, I am of opinion that when
A, the driver in the servient position, proceeds through an intersection in
complete disregard of his statutory duty to yield the right-of-way and a
collision results, if he seeks to cast any portion of the blame upon B, the
driver having the right-of-way, A must establish that after B became aware, or
by the exercise of reasonable care should have become aware, of A’s disregard
of the law B had in fact a sufficient opportunity to avoid the accident of
which a reasonably careful and skilful driver would have availed himself; and I
do not think that in such circumstances any doubts should be resolved in favour
of A, whose unlawful conduct was fons et origo mali.

[46]        
I find that the defendant attempted to complete his turn after the
yellow arrow for left turning traffic onto Oak Street had been extinguished. The
defendant knew or ought to have known that there was traffic approaching from
the opposite direction that was so close to the intersection as to constitute
an immediate hazard, but completely failed to determine if it was safe for him
to proceed as he did. He was thus obliged to yield the right of way to the plaintiff.
Based on the facts of this case, the reasoning in Pacheco is binding
upon me. In my view, the defendant has failed to establish that after Ms. Walker
became aware, or by the exercise of reasonable care should have become aware,
of his disregard of the law, she had a sufficient opportunity to reasonably
avoid the accident. As such, the defendant must bear full responsibility for
the motor vehicle accident.

The Plaintiff’s Injuries

[47]        
The test to be applied in determining causation for the plaintiff’s injuries
is the “but for” test explained by Mr. Justice Major in Athey v.
Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235, and elaborated upon in Resurfice
Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, and Mustapha v.
Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114. The plaintiff
bears the onus of showing that but for the negligent act or omission of the
defendant, her injury would not have occurred. The defendant’s tortious
activity or omission need not be the sole cause of the plaintiff’s injuries,
but must be a contributory factor beyond the de minimus range.

[48]        
The plaintiff gave evidence that as a result of the motor vehicle
collision she suffered an injury to her left shoulder, musculo-ligamentous or
musculo-tendinous injuries to the structures surrounding her pelvis and low
back, as well as a facet and soft tissue injury to her neck with associated
headaches. She presently complains of chronic pain in her low back and pelvis,
and permanent limitation in the range of motion in her neck due to muscular tension,
which she contends causes nearly constant headaches.

[49]        
Her evidence regarding the changes she has undergone as a result of the
motor vehicle accident is supported by the evidence of her partner, her
youngest sister, and Ms. Janet York, her partner’s mother. They described
the plaintiff as active and involved before the accident, and compromised in a
variety of ways since.

[50]        
While I accept the evidence of these witnesses, I would be surprised if
anyone could manage the variety of demands faced by the plaintiff without being
tired and at times short tempered. She has managed to maintain her household
with what sounds like limited assistance from her partner, and juggle the
demands of three young sons, while at the same time attending to her studies to
gain admission to medical school, a pursuit requiring long hours of
concentrated effort.

[51]        
As mentioned, Lori Johnson is the owner of Soma Studio, and first gave
the plaintiff employment after she completed her massage therapy training. She
had brief discussions with the plaintiff about working with her to develop a
second studio, which the plaintiff and her partner contended was a promising
business opportunity. I find that the discussions were exploratory only, and
despite the fact that the plaintiff, her partner and his mother looked for a
suitable location, do not consider that the proposed business opportunity was
viable for the plaintiff at the time, nor that Ms. Johnson would have
entered into such an arrangement with her.

[52]        
Dr. Robert Menzies is a general practitioner who saw the plaintiff both
before and after the motor vehicle accident. He described her pre-accident
health as excellent. He diagnosed her injuries from the accident as “soft
tissue injuries of the neck, low back, sacroiliac joints and symphysis pubis”.

[53]        
Dr. Noorjehan Rahemtulla is a chiropractor with an office in the
same building as Ms. Johnson. She treated the plaintiff for right sided
sacroiliac pain and decreased range of motion in her cervical spine on two
occasions during her first pregnancy. Dr. Rahemtulla saw the plaintiff in
May of 2010, after the motor vehicle accident, and continued to see her twelve
more times that year, until the plaintiff was once again pregnant. She gave
evidence that she was unable to do much to assist the plaintiff with the pain
in her lumbar spine. She has not treated the plaintiff since November 24, 2010.

[54]        
Peter McClean is a physiotherapist and certified intramuscular
stimulation practitioner who saw the plaintiff for five sessions in the summer
of 2010. He concluded that she suffered from pain in her lumbar spine and pubic
symphysis. He was unable to achieve any marked improvement with his treatment
of the plaintiff.

[55]        
Tara Keller Ng is a kinesiologist. She first saw the plaintiff in April
of 2012. She concluded that the plaintiff was then displaying dysfunction and
abnormal pattern movement, and found that the plaintiff showed consistent pain,
lumbo-pelvic instability and an abnormal rotation of her right pelvis. Ms. Keller
Ng recommended a rehabilitation program that was largely administered by
another kinesiologist, Raina Croner.

[56]        
Dr. Malgorzata Sudol is a physiatrist who treated the plaintiff’s
restricted range of motion in her right neck with injections of lidocaine in
2012. She gave evidence that her treatments resulted in improvement in the
plaintiff’s range of motion, but not in a return to the plaintiff’s
pre-accident condition. She also treated the plaintiff’s left shoulder and
lumbar spine in 2012 and 2013. Dr. Sudol was of the opinion that the
plaintiff’s left shoulder pain was more likely than not due to calcific
tendonopathy.

[57]        
Trish Gipson is a third kinesiologist who treated the plaintiff. She is
also a physiotherapist. She treated the plaintiff in September and October 2013
when the plaintiff was late in her fourth pregnancy. She concluded that the
plaintiff’s hip flexors and adductors were hypertonic, and that she was using
those muscles for stability. She also noted a restriction in the plaintiff’s
ability to rotate her neck.

[58]        
Dr. Robin Ferguson is a chiropractor who began treating the
plaintiff in July of 2013. She noted tightness in the plaintiff’s neck on both
sides as well as in the right side of her upper back. She has not treated the
plaintiff’s lumbar spine due to complaints that it is too painful for her to do
so, and has achieved little if any improvement in the plaintiff’s neck, which
she has treated on 22 occasions.

a)             
The Left Shoulder

[59]        
The initial complaints of left shoulder pain appeared to have resolved
within weeks of the motor vehicle collision, as seen from the report and the viva
voce evidence of Dr. Menzies. When the plaintiff first consulted Dr. Rahemtulla,
she made no mention of any shoulder difficulties.

[60]        
Although the plaintiff contends that she was left with an abnormally
positioned right scapula, she did not display any shoulder difficulties after a
matter of weeks following the accident.

[61]        
Dr. Heather Underwood is a specialist in Physical Medicine and
Rehabilitation or Physiatry who provided an expert report for the plaintiff. When
the plaintiff first consulted Dr. Underwood on February 17, 2011, she did
not make any complaints regarding her shoulder. The plaintiff returned to Dr. Underwood
for follow-up on February 23, 2012 and again made no complaint about any
shoulder difficulties.

[62]        
On June 26, 2012, the plaintiff injured herself performing an exercise
movement, which she described as a side plank, whilst working with her
kinesiologist. She experienced headaches the same evening, and ultimately
suffered significant limitations in her left shoulder from which she has never
recovered.

[63]        
In cross-examination Dr. Menzies
testified that an x-ray of the plaintiff’s left shoulder on November 14, 2012
showed no evidence of calcification, but expressed the view that imaging of the
plaintiff’s left shoulder in late 2013 revealed calcific tendinitis or tendonopathy
of the left rotator cuff. The defendant contended that this condition was the
result of the plaintiff’s calcified tendons and unrelated to the motor vehicle
accident. Dr. Menzies agreed in cross-examination that tendonitis
is usually due to overuse, and could compromise an individual’s ability to
perform massage therapy.

[64]        
Dr. John Wade is a specialist in
Rheumatology who was consulted by the defendant. It is his opinion that the
plaintiff had a musculoskeletal condition which pre-existed the motor vehicle collision.
While Dr. Wade conceded that it was entirely possible that the motor
vehicle collision caused minor tears to the plaintiff’s left shoulder
structures, he did not consider that to have happened in this case, and there
is an absence of any objective evidence to support such a hypothesis.

[65]        
I am not persuaded that the plaintiff’s difficulties with her left
shoulder that can be attributed to the motor vehicle accident lasted more than
a few weeks, or that the injury she sustained while working with her kinesiologist
was caused or contributed to by the injuries the plaintiff sustained in the motor
vehicle accident. I conclude, instead, that the present condition of the
plaintiff’s left shoulder is the result of an intervening and independent event.

b)             
Back and Pelvis

[66]        
The plaintiff’s low back pain was not the subject of early complaint to
her doctors. She reported a pre-accident history of low back treatment with
chiropractic manipulation to Dr. Underwood, and associated that pain
primarily with her first pregnancy. She gave evidence that her low back pain
was acute immediately after the accident and flared up during her second
pregnancy. It has persisted to some degree despite therapy and core
strengthening efforts. The plaintiff says that the low back pain is now
constant and debilitating, depending on the activities she undertakes. She gave
examples of holding her child in a carrier or bending to remove dishes from the
dishwasher as causing this pain. The pain apparently causes the plaintiff
difficulty sleeping.

[67]        
The low back pain is said by the plaintiff to be associated with pain in
her pubic symphysis as well as her sacroiliac joint, radiating into her right
leg, which was worse during her second pregnancy. The pain in her pubic
symphysis was described by the plaintiff as aching during her pregnancy with
her eldest son, and returning during her pregnancy with her middle son.

[68]        
Dr. Underwood found symptoms that were consistent with soft tissue
injuries to the structures surrounding the plaintiff’s pelvis and sacroiliac
joint and one of its supporting tendons which she concluded had been caused by
the motor vehicle accident. Dr. Underwood expressed the view that the
plaintiff’s low back and pelvic pain had been prolonged by her second pregnancy,
which she felt had resulted in hormonal ligamentous laxity and mechanical
changes, and was likely to continue.

[69]        
Dr. Underwood holds the view that the plaintiff now suffers from
chronic pain in her low back and pelvic region.

[70]        
Dr. Sudol found that the plaintiff’s range of lumbar motion was
quite restricted and considered that the plaintiff might have a discogenic
component to her back pain. Dr. Sudol suggested that the plaintiff undergo
an L-5-S1 facet block procedure, modify her activities and improve her core
strength.

[71]        
Dr. Wade considered that the plaintiff suffered a mild to moderate
musculoligamentous injury of her cervical and lumbar spine in the motor vehicle
accident. It was his opinion that the plaintiff had a pre-existing scoliosis
that resulted in more severe and prolonged symptoms from the injury to her
cervical and lumbar spine.

[72]        
It was Dr. Wade’s opinion that the plaintiff’s pregnancies delayed
her rehabilitation and contributed to her increasing complaints. Even if that
is correct, I conclude that the motor vehicle accident is responsible for the
delayed rehabilitation and increasing complaints so caused, as the plaintiff
could not be expected to put off or decide against having her children because
she was injured in the motor vehicle accident.

[73]        
The major differences in opinion between Dr. Wade and the
specialists called by the plaintiff are his views that the plaintiff will be
symptomatic only periodically in the future, and that her symptoms are due to
her scoliosis and hypermobility, not the motor vehicle accident, whereas Dr. Underwood
and Sudol opined that the plaintiff’s condition will be chronic and is due to
the motor vehicle accident.

[74]        
I am unable to accept either of the diametrically opposing views of Dr. Wade
on the one hand and that of Drs. Underwood and Sudol on the other. In my
opinion, the plaintiff was predisposed to low back and pelvic pain due, at
least in part, to her hypermobility and piriformis syndrome. I find that the
symptoms from these two conditions would have been exacerbated by her
pregnancies, regardless of whether she had been in the motor vehicle accident
or not.

[75]        
I find, however, that the plaintiff’s low back pain and pelvic pain were
worsened beyond what they would have been by the motor vehicle accident. While
I conclude that it is unlikely that she would have enjoyed a full recovery from
these difficulties had the motor vehicle accident not occurred, I find that her
recovery will be incomplete and will now be less favourable than it would have
been but for the motor vehicle accident.

c)       Neck
Pain, Headaches, and Related Complaints

[76]        
The plaintiff consulted Dr. Robert Menzies from July 13, 2010 until
February 14, 2011 regarding her accident, prior to consultations regarding her
second pregnancy. While his records reveal complaints of decreased range of
motion in the right side of her neck, the records indicate the neck pain had
subsided prior to the July 13, 2010 consultation. Such pain was diagnosed and
treated in 2012 by Dr. Sudol with injections which resulted in only
partial and transitory relief. The plaintiff gave evidence that she now suffers
from a limited range of motion to her right in her neck and thoracic spine,
which is not painful, but that the tightness associated with the limited range
of motion causes her headaches.

[77]        
Despite the absence of evidence of any injury on MRI examination, Dr. Underwood
concluded that the plaintiff’s neck pain was the result of a cervical facet
injury in combination with a soft tissue injury to her neck.

[78]        
The plaintiff had difficulty with migraine headaches long before the
motor vehicle accident. When she was in her teens, she experienced such
headaches associated with visual disturbances. These headaches continued until
the plaintiff was in her early twenties. She experienced headaches of a more
traditional type for approximately a year and a half following a motor vehicle
accident in 1998. When first engaged as a massage therapist, and during her
first pregnancy, the plaintiff also complained of headaches. The plaintiff initially
experienced hypertension during her first pregnancy.

[79]        
When pregnant for the second time, the plaintiff again experienced
headaches. During her fourth pregnancy, the plaintiff said that she had fairly constant
headaches.

[80]        
However, the plaintiff stated that she did not begin to again experience
migraine headaches until 2012. Her temporary vision loss in November 2011 was
diagnosed by the investigating neurologist, Dr. Negar Asdaghi, as a
transient ischemic attack and/or a migraine event. I am unable to conclude that
this vision loss is related in any way to the motor vehicle accident.

[81]        
Dr. Underwood considers that the plaintiff has chronic pain in her
neck. Dr. Underwood accepted that the plaintiff had a pre-morbid risk of
having migraine headaches, but considered that that risk was increased due to
her ongoing neck pain.

[82]        
As indicated above, Dr. Wade concluded that the plaintiff had
suffered from a mild to moderate musculoligamentous injury of her cervical and
lumbar spine in the motor vehicle accident that resulted in more severe and
prolonged symptoms stemming from a pre-existing injury to her cervical and
lumbar spine.

[83]        
Since the motor vehicle accident, the plaintiff’s headaches increased
during her second pregnancy, worsening to a constant state during her third
pregnancy, and occur when she studies for long hours.

[84]        
The plaintiff described her headaches as tension headaches that now occur
almost daily. On some days they are mild, but on other days can be moderate or
more severe, and if untreated will progress to migraine headaches. If
migrainous, they cause nausea and photophobia. If moderate or more severe, the
plaintiff must restrict her activities and is shorter in her temper, as well as
being unable to study properly, often having to read things for a second time.

[85]        
I find that the plaintiff’s headaches are attributable to her pre-motor
vehicle accident condition, and were exacerbated by her pregnancies. I am
unable to accept that they are the result of her motor vehicle accident.

[86]        
I do find that the plaintiff’s difficulties with her range of motion in
her cervical, lumbar and thoracic spine were caused by the motor vehicle
accident. While these difficulties will likely improve, they are also likely to
persist to some degree in the future and are thus compensable in these
proceedings.

d)       Emotional Impact

[87]        
Prior to the motor vehicle accident, the plaintiff perceived herself as
a strong person, able to take care of herself and others. In my view, her
self-description is fully supported by the evidence that I heard. She now
considers that she is weaker and less capable of taking care of herself and others.
In my view, she is indeed less capable of caring for herself and others, but
has done the best that she can given her ongoing pain and limitations.

[88]        
Fortunately, the plaintiff has had enormous support from Ms. York, both
directly and financially, and from Ms. York’s domestic assistant, Angie.
Her partner has pursued a new career in real estate sales, and continues to
involve himself in sporting activities. This combination of activities has, in
my view, left the lion’s share of child care and domestic responsibilities to
fall on the plaintiff. However, the defendant must take the plaintiff as she
is, complete with her support system, and any flaws that it has.

[89]        
The plaintiff found it necessary to seek counselling following the birth
of her second son. She saw Trudy Barton, perhaps weekly for a period of some
two and a half months, and felt that the counselling was beneficial to her. Although
her records were obtained, they were not marked as exhibits during the trial of
this action, and no opinion was offered by Ms. Barton.

[90]        
Clearly the plaintiff enjoys travelling. She travelled on her own to
Great Britain in the summer of 2012, and from there to Germany to visit her
sister, and later to Milan. Each summer the plaintiff and her family travel to
her partner’s family’s summer place at Tyaughton Lake in British Columbia, and
often take a winter holiday to Hawaii with Ms. York and her partner’s
stepfather.

[91]        
Despite the challenges and difficulties she has faced, the plaintiff
successfully completed her undergraduate degree, as well as the prerequisite
courses necessary for her to apply for enrollment at a Canadian medical school.
Since the motor vehicle accident, in addition to having her three sons, the
plaintiff has taught massage therapy and was interviewed and short listed for
admission to the Faculty of Medicine at the University of British Columbia.

[92]        
I find that the plaintiff has, as a result of the motor vehicle
accident, been forced to accept more challenges in her studies, her family
responsibilities, and in her pursuit of the activities she previously enjoyed.
Her willingness to continue undertaking these studies, responsibilities and
activities is to her credit, and she is entitled to compensation for the fact
that she has had to accept such challenges.

Non-Pecuniary Damages

[93]        
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, 263 D.L.R.
(4th) 19, Madam Justice Kirkpatrick, writing for the majority, commented that:

[46]      The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

I would add the following factors,
although they may arguably be subsumed in the above list:

(g) impairment of family, marital
and social relationships;

(h) impairment of physical and
mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff: Giang v. Clayton, [2005]
B.C.J. No. 163, 2005 BCCA 54).

[94]        
The plaintiff contends that her injuries and their sequelae
warrant an award for non-pecuniary damages of $100,000, while the defendant
contends that the award for this head of damages should be in the range of
$55,000 to $65,000.

[95]        
While the plaintiff is relatively young, and experienced injuries from
which I have found she will never completely recover, I have not been able to
accept that all of the injuries that she attributes to the motor vehicle
accident can properly be blamed on that collision.

[96]        
I have found that she has experienced emotional suffering, but also
found that her strong character and refusal to allow her difficulties to overcome
her goals, together with the assistance of Ms. York, have gone a long way
towards minimizing the suffering to which she might have allowed herself to
fall victim. That said, she has experienced a degree of such suffering. While
Kirkpatrick J.A. observed that stoicism is not a factor that should act to penalize
the plaintiff, her emotional suffering is not as great as it might have been had
she been a weaker person.

[97]        
I accept that the plaintiff’s relationship with her sons has suffered
due to her injuries from the motor vehicle accident, but not to any
irremediable extent. I find that her relationships with her siblings and
parents, and those with her partner’s family, have not suffered due to the
motor vehicle accident, with the exception of a short tem interruption with her
relationship with her younger sister.

[98]        
Insofar as her relationship with her partner is concerned, I find that
it has been strained at times, but not entirely due to the motor vehicle
accident.

[99]        
The plaintiff’s physical activities have been curtailed, but again, this
is not entirely due to the results of the motor vehicle accident. Her mental faculties
and abilities remain most impressive.

[100]     I have
reviewed the quantum authorities relied upon by the parties. None are entirely
comparable to the case at bar. Many involve plaintiffs who suffered injuries
notably more or less serious than I have found Ms. Walker to suffer from
as a result of the motor vehicle accident. I will refer to those that I found
more helpful.

[101]     In Guthrie
v. Narayan, 2012 BCSC 734, [2012] B.C.J. No. 989, a 26 year old
woman was injured in a motor vehicle accident. As of her trial date, she
experienced pain that varied in intensity, concentrated on the right side of
her neck and shoulders, on a daily basis. She was able to resume fulltime
employment after her employer made various accommodations to assist her at
work. The accommodations include an ergonomic chair and an elevated keyboard.
She could no longer engage in numerous physical activities in which she was
involved prior to the accident, including hiking if she had to carry a
backpack. From time to time she had to decline certain social opportunities
because she was physically incapable of participating. She could no longer perform
certain household tasks, such as vacuuming, cleaning bathtubs, carrying
groceries or garbage. She also found sitting for extended periods uncomfortable.
Her injuries affected her relations with her boyfriend as simple cuddling could
be painful.

[102]     The trial
judge found that Ms. Guthrie attempted to cope with her injuries as best
she could, but accepted that she was upset that she could no longer partake in
all the sports and social activities that she could participate in prior to her
accident. The trial judge also accepted that the plaintiff found her limited
recovery difficult and frustrating and that she was no longer as positive and
upbeat as she was prior to the accident. He awarded non-pecuniary damages of
$65,000.

[103]     In Azuma-Dao
v. M.K.A. Leasing Ltd., 2012 BCSC 10, [2012] B.C.J. No. 15, a 28 year
old woman was injured in a motor vehicle accident. The trial judge found that
she suffered from chronic pain as a result of the accident and went from being a
fit, very active person, to a withdrawn, moody, and deconditioned one who
endured pain on a daily basis. She was awarded $65,000 for non-pecuniary
damages.

[104]     In Raun
v. Suran, 2010 BCSC 793, [2010] B.C.J. No. 1068, a 17 year old male suffered
injury to his right shoulder, left knee, neck, middle and upper back as a
result of a motor vehicle accident. His mid back and knee injuries cleared up
in a month or two but his right shoulder, neck and lower back pain affected him
up to the date of trial, almost five years later. While the prognosis for his
right shoulder was good, the prognosis for the neck and low back pain was
guarded and it was found that the continuing pain had significantly affected
him. He was awarded $75,000 for non-pecuniary damages.

[105]     In Bergman
v. Standen, 2010 BCSC 1692, [2010] B.C.J. No. 2395, a 32 year old
woman was injured in a motor vehicle accident. The trial judge found that she suffered
contusions, bruises to her face and chest, and a sore wrist, which resolved
without ongoing difficulties shortly after the accident, as well as a Grade II
whiplash injury to her neck and upper back, which resolved after several months
leaving her with no recurrent symptoms. More significantly, the trial judge
found that she also suffered a mechanical injury to her lower back that caused
her significant pain and discomfort for four and a half years since the
accident and would remain symptomatic indefinitely. She received an award of
$77,500 for non-pecuniary damages, which included $2,500 to partially
compensate the plaintiff for her loss of housekeeping capacity.

[106]     In Clark
v. Kouba, 2012 BCSC 1607, [2012] B.C.J. No. 2243, a 49 year old woman
sustained soft tissue injuries to her neck, shoulders, mid- and upper-back in a
motor vehicle accident. The trial judge found that the injuries resulted in
chronic pain, headaches, emotional and cognitive distress, and sleep disorder. She
also found that the injuries impacted the plaintiff’s personal relationships
and caused her difficulty performing some household chores. Her prognosis for
the future was guarded. The plaintiff received an award of $85,000 for
non-pecuniary damages. The defendant’s appeal on other issues was dismissed in
reasons for judgment indexed at 2014 BCCA 50.

[107]     In J.D.
v. Chandra, 2014 BCSC 466, [2014] B.C.J. No. 2966, a 17 year old
female was injured in two successive motor vehicle accidents. The trial judge
found that she suffered soft tissue injuries in the accidents that left her
with chronic pain in her back, right shoulder, and to some extent her neck, and
that it was unlikely that she would improve significantly. She concluded that
it was more likely that the young woman would continue to suffer from chronic
pain for the rest of her life. The award for non-pecuniary damages was
$100,000.

[108]     In Shapiro
v. Dailey, 2010 BCSC 770, 33 B.C.L.R. (5th) 364, a 23 year old woman
sustained soft tissue injuries to her cervical, lumbar and sacral spine in a
motor vehicle accident. Her injuries left her with headaches, chronic pain
disorder, myofascial pain, fibromyalgia, depressive symptoms, mood disorders
and associated cognitive disorders. She was awarded $110,000 for non-pecuniary
damages. That award was not disturbed on appeal, with reasons for that appeal
indexed at 2012 BCCA 128.

[109]     In my
opinion, Ms. Walker’s injuries from her motor vehicle accident are less
severe than those of J.D. or Ms. Shapiro, but they are somewhat comparable
to those found to have been suffered by Ms. Clark. As Ms. Walker is
younger than Ms. Clark was when she was injured, she will face a longer
period of less severe difficulties that those that faced Ms. Clark.
Bearing this in mind, I assess the plaintiff’s non-pecuniary damages at $75,000.

Loss of Past Income

[110]    
 In Gill v. Probert, 2001 BCCA 331, [2001] B.C.J. No. 1056, Mr. Justice
Mackenzie, for the Court, explained at paras. 8 – 9:

[8]        As the plaintiff was unable to return to his
employment after the first accident his earnings from that employment, but for
the accident, are hypothetical. The trial judge started with a gross figure
assuming no contingencies. She then considered both positive and negative
contingencies. Positive contingencies included the possibilities of a further
promotion to lead-hand and an absence of lay-offs due to economic conditions.
Negative contingencies included: delay in promotion to printer until later than
1995; periodic lay-offs due to maintenance closures; variations in the amount
of overtime; and potential illness or injuries requiring absence from work.

[9] Athey v. Leonati,
[1996] 3 S.C.R. 458, relied on by the plaintiff, held that past events such as
negligence and causation between fault and injury must be proved on a balance
of probabilities and thereafter treated as certainties. However, Mr. Justice
Major stated (at para. 27) that hypothetical events need not be proved on
a balance of probabilities, and they are simply to be given weight according to
their relative likelihood. In assessing hypothetical events there is no reason
to distinguish between those before trial and those after trial. In making an
allowance for contingencies the trial judge was assessing the hypothetical
events that could have effected [sic] the plaintiff’s employment
earnings, according to the assessment to their relative likelihood.

[111]     While the
plaintiff had worked in the nightclub industry prior to the motor vehicle
accident, she had given up that kind of work to pursue training and employment
as a massage therapist. I find that if the motor vehicle accident had not
occurred, the plaintiff would have continued to work as a massage therapist,
whilst pursuing her educational goals, and would have continued to spend
considerable energies on her family and her travel interests. However, her
pregnancies and her studies would both have interrupted her employment.

[112]     As I have
already stated above, I do not consider that the proposed business opportunity to
operate a second Soma Studio with Ms. Johnson was viable for the plaintiff,
nor that Ms. Johnson would have entered into such an arrangement with her.
Therefore I attribute no loss of past income to this alleged business
opportunity.

[113]     It was the
plaintiff’s evidence, as well as that of Ms. Johnson, that massage therapy
is a demanding vocation, and that it takes a toll on its practitioners. The
plaintiff herself experienced the stresses and strains of her vocation,
requiring massage and other treatments to provide some relief.

[114]     While the
plaintiff gave evidence that she worked two to three days per week prior to the
motor vehicle accident, seeing eight patients per day, her income tax returns
and records do not support such hours. Her overhead consisted of a fee of $107
per day, paid to Ms. Johnson for the use of space at Soma Studio,
regardless of the number of clients seen. While she also claimed other expenses
on her tax returns, which I am not convinced are of any import to this case, her
reported gross income is nowhere near what she would have earned had she seen eight
patients, two to three days per week at the $80 to $100 per hour rate she said
she charged for her treatments prior to her maternity leave.

[115]     From
January 1, 2008 until August 31, 2009, the plaintiff reported net income after
taxes through her company of $15,319 in 2008 and $12,006 in 2009, with an
additional $2,713 coming from the West Coast College of Massage Therapy in
2009.

[116]     The
plaintiff’s personal income tax returns reported income, exclusive of her
massage therapy income, of:

 a)       $37,166, including Employment Insurance
benefits of $5,811, for 2009;

 b)       $16,539 for 2010;

 c)       $16,950 on a draft return for 2011; and

 d)       $9,737.60 on a draft return for 2012.

[117]     The
plaintiff’s income for 2012 included $1,237.60 for teaching at the West Coast
College of Massage Therapy, and she gave evidence that she earned $7,092.80
from the same source in 2013. She agreed that if she were employed, she would
require care for her boys.

[118]     The
plaintiff incorporated Walker Ventures Inc., a company for her pre and post
massage therapy work. That company reported total sales of goods and services
of $40,385 for 2008. The plaintiff gave evidence that just before the trial began,
she discovered that her income tax returns understated her gross income by
almost 50% because certain cash sales had not been included. The plaintiff’s
accountant gave evidence that the plaintiff told him that she had received
unreported income of $3,000 in 2007, $8,000 in 2008 and $9,000 in 2009.

[119]     I am not
prepared to accept that the plaintiff received unreported income in those
amounts in those years, let alone the 50% suggested by the plaintiff in her
evidence. There is no reason for the plaintiff not to have reported all of the
income that she earned in those years, and she has still taken no steps to
report it to Canada Revenue.

[120]     In 2008,
the plaintiff worked only ten months. Dividing the company’s total reported sales
by ten, to represent the ten months that she worked, results in monthly sales
of goods and services of $4,038.50. The plaintiff gave evidence that she
charged $80 per hour in 2008. Dividing her average monthly sales by 80
translates into roughly 50 patients per month, or 12 – 13 per week.

[121]     The
plaintiff conceded that she was paying $875 per month for rent for all twelve
months in 2008. As she had given evidence that her rental costs were $120 for
each full day, the rent paid per month represents only seven days rent at that
rate.

[122]     In 2009,
the company reported total sales of $32,005. The plaintiff went on maternity
leave in September of that year, but had previously increased her hourly rate to
$100. She explained that she worked three half days toward the end of her
pregnancy. However, assuming only three half days with 4 patients each half day
for July and August, that would account for roughly $1200 for each of those
months, leaving a little less than $30,000 to represent her sales for the first
six months of that year, or $5,000 per month. This represents the same 50
patients per month that her reported sales in 2008 showed.

[123]     I find
that but for the motor vehicle accident, the plaintiff would have returned to
work as a massage therapist in September 2010 when her maternity leave benefits
were exhausted, representing a total of 43 months until trial. That said, I find
that the plaintiff would not have worked throughout that entire time, even if
she had not been in the motor vehicle accident. Whether her regular patients
would have accommodated three successive maternity leaves without seeking
another massage therapist is uncertain. The injury to her left shoulder in late
2012, which I have found cannot be attributed to the motor vehicle accident,
virtually eliminated her return to massage therapy after it occurred.

[124]     Her second
pregnancy was difficult, and the demands of her most recent pregnancy, as well
as caring for her three sons once all were born, would have made full time
employment nearly impossible. Her studies would also have limited the time that
she would be able to work.

[125]     Bearing
all of these factors in mind, I find that a fair and reasonable assessment of
the plaintiff’s loss of past income is 19 months at $4,000 per month for a
total of $76,000. Her left shoulder injury did not prevent her from working for
and earning $8,330.40 from the West Coast College of Massage Therapy; however, as
I have concluded that she would have had to stop working as a massage therapist
before that date, I think it unfair to deduct those earnings from her past loss
of earnings.

[126]     The
plaintiff proposed that I assume an average tax rate for the plaintiff of 25%,
albeit for a larger past income loss. In the absence of any evidence that casts
doubt on the propriety of that rate, I will use it to find a net past income
loss for the plaintiff of $57,000.

Loss of Future Earning Capacity

[127]     In Perren
v. Lalari, 2010 BCCA 140 at para. 32, 3 B.C.L.R. (5th) 303, Madam
Justice Garson, for the Court, stated that in order to establish an entitlement
for compensation for a loss of future earning capacity, a plaintiff must always
prove that there is a real and substantial possibility of a future event
leading to an income loss. If he or she succeeds in proving such a possibility,
the plaintiff may then prove the quantification of that loss of earning
capacity, either on an earnings approach or a capital asset approach.

[128]     The
plaintiff’s expressed future plans are to obtain admission to a medical school
and to obtain a medical degree. She has done well in her studies, following a
somewhat untraditional path, and had been shortlisted for admission to the Faculty
of Medicine at U.B.C as of the date of trial. That, of course, is no guarantee
that she will gain admission to that faculty, but I am prepared to find on the
evidence led at trial that such an admission for the plaintiff is probable.

[129]     After I
heard final submissions from the parties, the plaintiff applied to reopen the
trial in order to adduce evidence that she had in fact been accepted into the Faculty
of Medicine at U.B.C. Her application was opposed by the defendant.

[130]     As noted
in Kostecki v. Li, 2013 BCSC 2451 at para. 13, [2013] B.C.J. No. 2915,
the jurisdiction to reopen a trial is inherent, and is not restricted to proving
a material fact. While the discretion to reopen is to be exercised sparingly,
where no judgment has yet been pronounced the court has “considerably more
discretion to re-open [the trial] … as greater scrutiny will be necessary if
the application is made after the court’s decision has been given” – see Berezowski
v. British Columbia (Residential Tenancy Branch), 2014 BCSC 363 at para. 172,
[2014] B.C.J. No. 391.

[131]    
One of the most recent statements of our Court of Appeal on reopening a
trial is found in Graham v. Galaxie Signs Ltd., 2013 BCCA 266, 45
B.C.L.R. (5th) 305. There, Madam Justice Kirkpatrick, for the Court, stated in
part at paras. 27-29:

[27]      The judge then considered the legal basis on which
an application to re-open a trial may be made:

[6]        In [Zhu], this court stated at para. 20 that
the following principles apply to an application to re-open a trial to adduce
fresh evidence:

1. Prior to the entry of the formal order, a trial
judge has a wide discretion to re-open the trial to hear new evidence.

2. This discretion should be exercised sparingly and
with the greatest care so as to prevent fraud and abuse of the courts process.

3. The onus is on the applicant to show first that a
miscarriage of justice would probably occur if the trial is not re-opened and
second that the new evidence would probably change the result.

4. The credibility of the proposed fresh evidence is a
relevant consideration in deciding whether its admission would probably change
the result.

5. Although the question of whether the evidence could
have been presented at trial by the exercise of due diligence is not
necessarily determinative, it may be an important consideration in deciding
whether a miscarriage of justice would probably occur if the trial is not
re-opened.

. . .

[29]      In my opinion, Galaxie
has failed to demonstrate any error by the judge in the exercise of his
discretion in the first re-opening application. The judge properly applied the
principles for re-opening and confined the re-opening to the only issue
disclosed by the evidence before him.

[132]     The
defendant submitted that the test for reopening a trial is essentially three
parts, while the plaintiff, relying on G.C.H. v. H.E.H., 2009 BCSC 4, 64
R.F.L. (6th) 408, states that the test has 5 parts. The passage in G.C.H.
takes the 5 part list from Zhu v. Li, 2007 BCSC 1467, 43 R.F.L. (6th)
376, the case approved of by Kirkpatrick J.A. in Graham, quoted above. As
can be seen, the 5 points articulated by Kirkpatrick J.A. do not represent a 5
part test, but rather a summary of the principles guiding the exercise of the
discretion. Only the third principle can be said to be a genuine “test” for the
exercise of the discretion.

[133]     As stated
by our Court of Appeal in the seminal case of Clayton v. British American
Securities Ltd. (1934), 49 B.C.R. 28 at 66, [1934] 3 W.W.R. 257, the main
concern in determining whether to reopen the case is whether a miscarriage of
justice will result from the failure to do so.

[134]     While I have
a wide discretion to allow the plaintiff to adduce evidence despite the trial
having concluded, issuing judgment based on the possibility of her admission
into medical school, rather than its certainty, does not rise to the level of
being a miscarriage of justice. Admission to medical school is no guarantee of
graduation, or of success or longevity in a medical practice. Receiving the
evidence would not, in any material way, alter my determination of the quantum
of damages, her admission into medical school being but one contingent element
to be considered in assessing any loss of future earning capacity.

[135]     In Mikkelsen
v. Hunter (1998), 49 B.C.L.R. (3d) 268, 105 B.C.A.C. 191, our Court of
Appeal refused to allow the introduction of fresh evidence relating to the
condition of the plaintiff’s injuries stemming from a motor vehicle accident
following trial, stating at para. 13:

13        The plaintiff sought to
introduce fresh evidence in this court as to his condition since trial — an
application I find we cannot grant on the authorities. This is not a case like Cory
v. Marsh (1993), 77 B.C.L.R. (2d) 248 (B.C. C.A.) where the plaintiff had
died post-trial; nor like Christie (Guardian ad litem of) v. Insurance Corp.
of British Columbia (June 10, 1993), Doc. CA013361 (B.C. C.A.) where the
plaintiff was diagnosed with epilepsy post-trial. In other words, the facts
have not changed so substantially as to make the evidence on which the jury
proceeded an “affront to common sense” (here I quote Mr. Justice Gibbs for
the Court in Cory) or so as to “falsify” the evidence (here I quote the
Chief Justice in Colliar v. Tolksdorff (1992), 74 B.C.L.R. (2d) 145
(B.C.C.A.).)

[136]     Despite
the fact that Mikkelsen and the cases it mentions deal with the law as
it relates to an appellate court accepting fresh evidence, the standard for
accepting such evidence in the civil context enunciated by our Court of Appeal
gives guidance as to what is meant by the term miscarriage of justice. While
the prejudice to the defendant in this matter would likely be slight should I allow
the plaintiff to reopen the trial, it is unlikely my failure to consider Ms. Walker’s
acceptance into medical school, rather than simply considering that as a probability,
will risk a miscarriage of justice occurring. That acceptance cannot be said to
have rendered the facts as they were at trial “suddenly and materially
falsified by a dramatic change of circumstances”, as stated in Knutson (Guardian
ad litem of) v. Farr, [1984] 5 W.W.R. 315, 12 D.L.R. (4th) 658 (B.C.C.A.), such
that proceeding on that contingent basis would be an affront to common sense.

[137]     Given that
I have found that the plaintiff will continue to experience neck, back and
pelvic pain in the future, I conclude that there is a real and substantial
possibility that this will lead to some income loss. What that loss will be
involves what has been described by Mr. Justice Dickson, as he then was, in
Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 251, 83
D.L.R. (3d) 452, as gazing deeply into the crystal ball, as the plaintiff has
not proven what income she might expect but for her motor vehicle related
difficulties, nor what income she might now reasonably expect.

[138]    
 The evidence thus invites an assessment of this loss on the capital
asset approach. That approach was described by Mr. Justice Finch, as he
then was, in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 8,
[1985] B.C.J. No. 31 (S.C.):

8          The means by which the value of the lost, or
impaired, asset is to be assessed varies of course from case to case. Some of
the considerations to take into account in making that assessment include
whether:

1.         The plaintiff has been rendered less capable
overall from earning income from all types of employment;

2.         The plaintiff is less marketable or attractive as
an employee to potential employers;

3.         The plaintiff has lost the ability to take
advantage of all job opportunities which might otherwise have been open to him,
had he not been injured; and

4.         The plaintiff is less valuable to himself as a
person capable of earning income in a competitive labour market.

[139]     The first
criterion does not fully apply to the plaintiff. I think it likely that she
will complete medical school within the same time frame as those with admitted
with her.

[140]     As a
physician, the plaintiff will need to consider obtaining hospital privileges,
but I do not see that she is less marketable to those who grant such
privileges, nor to patients who require a physician.

[141]     The work
life of a physician was described by Dr. Menzies as irregular. He said
that it requires attentiveness, punctuality, establishing rapport, having
confidence, sitting, reading, communicating, walking, standing and working at a
computer.

[142]     The
plaintiff feels that she may not be able to pursue more physically demanding medical
specialties involving surgery or emergentology. In my view this is a realistic assessment.
However, given her family responsibilities, I find that it is unlikely that she
would have been inclined to such specialties had she not been in the motor
vehicle accident, and, like her work as a massage therapist, I think it likely
that she would not have chosen to work five days per week had she not been
involved in the motor vehicle accident. In my opinion, she will not now choose
to work five days a week. Even though she would have worked at less than five
days per week at any rate, the plaintiff has lost the ability to take advantage
of work opportunities as a physician which might otherwise have been open to
her, had she not been injured.

[143]     While I do
not consider that the plaintiff is the type of person who will be overwhelmed
by the challenges she will face, she is, nonetheless, less valuable to herself
as a person capable of earning income in a competitive labour market.

[144]     In Brown,
Finch J. awarded damages for loss of earning capacity at the rough equivalent
of one year’s income to the 28 year old plaintiff based upon the vocation that
he would return to following his accident.

[145]     I consider
that the same broad brush approach would do justice between the parties in this
case. Given the plaintiff’s intended profession, as compared to the more physically
demanding vocation of Mr. Brown, together with the probability that the
plaintiff will be unable to pursue a medical specialty, I have concluded that
her income stream from the practice of medicine will not begin until at least
2021, which is 6 years after the year when she can complete her first year of
medical school.

[146]     I therefore
assess the plaintiff’s loss of future earning capacity at $189,000, which is the
present value, net of expenses, of full time, full year earnings for a general
practitioner of medicine in British Columbia, commencing in 2021, which I will
round up to $190,000.

Special Damages

[147]     The
plaintiff’s claim for special damages amounts to a total of $12,753.78, which
figure includes physiotherapy at a cost of $1,369.40, chiropractic treatments
at a cost of $1,265.00, massage therapy treatments at a cost of $755.00, kinesiology
treatments at a cost of $855.00, magnetic imaging at a cost of $1,245.00, and
osteopathic treatments at a cost of $7,770.00, less $505.62 paid toward these
costs by the Insurance Corporation of British Columbia.

[148]     The
defendant concedes only the physiotherapy and kinesiology costs. The defendant
contends that the chiropractic treatments undergone by the plaintiff occurred
during or just after her pregnancies. While this is largely true, I have found
that the plaintiff’s difficulties during her pregnancies were exacerbated by
her injuries in the motor vehicle accident, and I find that the accident was a
least a contributing cause of her need for chiropractic treatments. The cost of
those treatments is, therefore, recoverable by the plaintiff.

[149]     I am not
persuaded that all of the massage therapy costs are attributable in whole or in
part to the motor vehicle accident. The plaintiff sought such treatments before
and during her first pregnancy, and I find that it is likely she would have
done so during her other pregnancies. I find that only one-third of the cost of
the massage therapy treatments is recoverable by the plaintiff, and round these
recoverable costs down to $250.

[150]     The
records of the plaintiff’s treating osteopath, Sarah Strachan, were also
obtained, but were not marked as exhibits at trial. She was not called as a
witness, and her opinions were therefore not before me.

[151]     There is
little support in the medical evidence for the cost of the osteopathic
treatments undergone by the plaintiff being attributable to her injuries in the
motor vehicle accident. They are not mentioned by Dr. Menzies and are
mentioned only in passing by Dr. Underwood, without any explanation of the
benefit she expected for the plaintiff from such treatment. I am not persuaded
that any of the cost of the osteopathic treatments is recoverable by the
plaintiff. I make no finding about the portion paid for by the Insurance
Corporation of British Columbia.

[152]     Insofar as
the magnetic imaging costs are concerned, they were incurred in an effort to
diagnose the cause of the plaintiff’s lumbar spine and sacroiliac pain. In my
opinion the cost of those treatments is recoverable by the plaintiff.

Future Care Costs

[153]    
The principles to be applied in the assessment of this head of damages
were described by Madam Justice Fitzpatrick in Langille v. Nguyen, 2013
BCSC 1460 at paras. 231 – 33, 50 M.V.R. (6th) 132:

[231]    The plaintiff is entitled to compensation for the
cost of future care based on what is reasonably necessary to restore her to her
pre-accident condition, insofar as that is possible. When full restoration
cannot be achieved, the court must strive to assure full compensation through
the provision of adequate future care. The award is to be based on what is
reasonably necessary on the medical evidence to preserve and promote the
plaintiff’s mental and physical health: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.); Williams v. Low, 2000 BCSC 345; Spehar et
al. v. Beazley et al., 2002 BCSC 1104.

[232]    The test for determining the appropriate award under
the heading of cost of future care is an objective one based on medical evidence.
For an award of future care: (1) there must be a medical
justification for claims for cost of future care; and (2) the claims must be
reasonable: Milina v. Bartsch at 84.

[233]    Future care costs must
be justified both because they are medically necessary and are likely to be
incurred by the plaintiff. The award of damages is thus a matter of prediction
as to what will happen in future. If a plaintiff has not used a particular item
or service in the past, it may be inappropriate to include its cost in a future
care award: Izony v. Weidlich, 2006 BCSC 1315 at para. 74.

[154]     It is
clear from the decision of our Court of Appeal in Gregory v. Insurance
Corporation of British Columbia, 2011 BCCA 144, 17 B.C.L.R. (5th) 101, that
a medical opinion supporting a claim for a particular expense is unnecessary,
so long as there is some evidence that the expense claimed is directly related
to a disability arising from the cause of action.

[155]    
The plaintiff called Robert Corcoran, an occupational therapist, to
support her claims for cost of future care. Mr. Corcoran has never met nor
spoken with the plaintiff, nor assessed her, but prepared a report setting out the
plaintiff’s future care costs based upon the recommendations of Dr. Underwood.
They are summarized in an appendix to Mr. Corcoran’s report as follows:

·       
Supervised exercise sessions – $720;

·       
Therapeutic Botox injections – $3,273;

·       
Occupational therapy – $441;

·       
Ergonomic office chair – $803;

·       
Document holder – $21;

·       
Slant board – $69;

·       
Computer monitor arm/riser – $175;

·       
Keyboard tray and mechanism – $230;

·       
Footrest – $72;

·       
Ergonomic nursing pillow – $49.99;

·       
Furniture risers – $175.60;

·       
Low height task stool – $149;

·       
Nanny – $10,608 (yearly for 3 years);

·       
Nanny agency placement fee – $500;

·       
Phase I: housekeeping support – $1,860 (age 33 to 49);

·       
Phase II: housekeeping support – $1,395 (age 49 to 75);

·       
Housekeeping support – $1116 (age 76);

·       
Housekeeping support – $893 (age 77);

·       
Housekeeping support – $715 (age 78); and

·       
Housekeeping support – $572 (age 79).

[156]     As I have
indicated above, I do not accept the pessimistic future prognosis offered by
Drs. Sudol and Underwood that the plaintiff’s condition will be as chronic as
they prognosticate. I have found, instead, that the plaintiff’s low back pain
and pelvic pain were worsened beyond what they would have been by the motor
vehicle accident and that her recovery will be incomplete and less favourable
than it would have been but for the motor vehicle accident.

[157]     I am not
persuaded that the plaintiff requires supervised exercise sessions, and Dr. Underwood,
the sole source of Mr. Corcoran’s opinion, does not recommend supervised
exercise sessions for the plaintiff. The defendant has conceded that a two year
strengthening program at a cost of $1,440 is reasonable, and I award the
plaintiff that amount for that purpose.

[158]     The
plaintiff’s claim for the cost of botox injections was supported by the
evidence of Dr. Underwood, if the plaintiff continued to suffer from
significant difficulties with headaches. As I have concluded that her headaches
were not the result of the motor vehicle accident, I am not persuaded that the
plaintiff should recover an award for the cost of such injections.

[159]     Occupational
therapy was not recommended by Dr. Menzies. While some support for this
type of therapy might be gleaned from Dr. Underwood’s report, it is
insufficient to persuade me that the plaintiff should recover an award for the
cost of such therapy.

[160]     None of
the ergonomic chair, document holder, slant board, computer monitor arm riser,
key board tray mechanism, foot rest, ergonomic nursing pillow, furniture risers
or the low height task stool were prescribed by Dr. Underwood as being required
by the plaintiff as a result of her motor vehicle accident. Further, Dr. Menzies
agreed that such accommodations would be good for everyone. I am unable to
accept that the plaintiff should recover an award for the cost of these
accommodations.

[161]     I do not
accept that the cost of a nanny or the placement fee for such an individual or
individuals has arisen as a result of the motor vehicle accident. To date, the
plaintiff has had the benefit of the services of Ms. York and her domestic
assistant Angie, with no suggestion of any cost to Ms. Walker. While Joni
McKervey, Mr. York’s cousin, was paid $1000 – $1500 per month to assist
the plaintiff, I am not persuaded that this was as a result of anything other
than the reality that faced the plaintiff from the birth of her sons. The
plaintiff’s chosen pursuit of a medical degree will necessitate future care for
her sons, and this cannot be attributed to her injuries from the motor vehicle
accident.

Loss of Housekeeping Capacity

[162]     I am
persuaded that the plaintiff will require some ongoing housekeeping assistance
as a result of the injuries that she sustained in the motor vehicle accident. Mr. Corcoran
has proposed a team of 2-3 housekeepers for two hours per month at an annual
cost of $1,860 to age 49, reducing to 1.5 hours per month to age 75 for an
annual cost of $1,395. While the life that the plaintiff has chosen, if she is
to practice as a physician, will be demanding, I do not consider that Mr. Corcoran’s
proposal for housekeeping is unreasonable and will allow it. The present value
of this award was discussed in Mr. Benning’s and Mr. Szekely’s second
economic reports.

[163]      The
second reports were necessitated by the amendment to the discount rates which
came into effect before the conclusion of the trial. While Mr. Benning’s
report for the plaintiff, and that of Mr. Szekely for the defendant, were
filed as expert reports, the calculation of present value multipliers for the
discount rates to be applied pursuant to s. 56 of the Law and Equity
Act, R.S.B.C., 1996, c. 253, is simply the application of a
mathematical formula. As such, I do not consider that this aspect of the two
reports requires any notice.

[164]     The
figures provided by the two experts do not differ in any meaningful way. The
cost of future care multiplier from the present to age 49 is $13,636 per $1,000
of housekeeping expenditures. The same multiplier from age 49 to age 75 is
$13,902.

[165]     Applied to
the costs of housekeeping listed in Mr. Corcoran’s reports, this results
in a total present value award to Ms. Walker of $44,756.25.

[166]     I will
round up the total of the future housekeeping costs to $45,000.

Conclusion

[167]     The
plaintiff’s damages arising from the motor vehicle accident are assessed as
follows:

[168]    
Unless the parties wish to make submissions as to costs, the plaintiff
will recover her costs and disbursements of the action from the defendant at
Scale B.

“The
Honourable Chief Justice Hinkson”